Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 10]
[2010] WASC 168
•2 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED [No 10] [2010] WASC 168
CORAM: MURRAY J
HEARD: 28 JUNE 2010
DELIVERED : 28 JUNE 2010
PUBLISHED : 2 JULY 2010
FILE NO/S: CIV 1279 of 2001
CIV 1949 of 2008
BETWEEN: WRIGHT PROSPECTING PTY LIMITED (ACN 69 008 676 417)
Plaintiff
AND
HANCOCK PROSPECTING PTY LIMITED (ACN 69 008 676 417)
Defendant
Catchwords:
Practice and procedure - Application to release counsel from confidentiality undertaking - Purpose to enable counsel to be briefed in litigation different from action in which counsel entered into confidentiality undertaking - Turns on own facts
Legislation:
Nil
Result:
Applications substantially dismissed with costs
Category: B
Representation:
Counsel:
Plaintiff: Mr R M Smith SC with Mr R J Brender
Defendant: Mr S G Finch SC and Mr C N Bova
Intervener: Mr G R Donaldson SC
Solicitors:
Plaintiff: Lavan Legal
Defendant: Hunt & Humphry
Intervener: Allens Arthur Robinson
Case(s) referred to in judgment(s):
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 2] (2010) WASC 16
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 8] [2008] WASC 20
MURRAY J: There were two applications before the court.
The first application was made in the action CIV 1279 of 2001 brought by the plaintiff against the defendant. In that action I gave judgment for the plaintiff and dismissed the defendant's counterclaim, making an order for the specific performance of a contract. The subject matter of that action was the interest of the plaintiff and the defendant, as partners, in mining tenements collectively known as Rhodes Ridge.
The intervener in these proceedings, for whom Mr Donaldson SC appeared by leave, may be described as the Rio Tinto group of companies (Rio Tinto). Rio Tinto has a 50% holding of Rhodes Ridge pursuant to a joint venture agreement.
On a number of occasions during the course of that litigation, the question of access to apparently relevant documents of a commercially sensitive nature arose. Argument was heard and in the result, access was granted where necessary to categories of people involved in the case, such as counsel, solicitors and expert witnesses and advisers, but only upon the basis of a series of undertakings given to the court, the party producing the documents and to Rio Tinto, if that entity was doing so, in a form which was calculated to have the documents become available for their use in the proceedings, but otherwise to have their confidentiality preserved.
It may be said that the undertakings so devised, substantially by agreement with those involved on either side, either to give the undertakings or to receive them, imposed comprehensive restrictions upon those gaining access to the documents to prevent their use other than in the proceedings in which they were given, or in relation to any appeal arising out of that litigation.
A set of documents which became relevant in that litigation, related to the prospect or group of tenements known as Hope Downs, to be exploited pursuant to a joint venture arrangement held equally by each of the defendant and Rio Tinto. It does not matter how it became relevant, but to put it shortly, counsel for the plaintiff, Mr Smith SC and Mr Brender and the expert witness to be called by the plaintiff, Mr Cole, were held to be entitled to access to documents concerning Hope Downs as part of the process of Mr Cole making a valuation of Rhodes Ridge by relying upon the values attributable to the more advanced Hope Downs project, and so documents relating to Hope Downs became the subject of confidentiality undertakings given in the action CIV 1279 of 2001. A principal document among those produced, was the Hope Downs Project Cooperation Agreement.
The documents were provided for inspection by counsel and experts for the plaintiff who entered into the relevant confidentiality undertaking. As I have said, the contents of the documents were to be used only for the purpose of the action CIV 1279 of 2001, or any appeal (and one has been lodged) against the judgment in that action. Ultimately, the documents in question are to be destroyed or delivered up to the solicitors for Rio Tinto.
For present purposes, it is important to note the terms of par 10 of the relevant undertaking so far as they are material:
I will not advise or represent the Plaintiff or any 'related entity' or 'related body corporate' of the Plaintiff, within the meaning given to those terms in the Corporations Act 2001 (Cth), the Defendant or any related entity or related body corporate of the Defendant (as defined above) or any other third party in regard to any matter, (other than these proceedings, any appeals or other litigation between the Plaintiff and the Defendant which may arise from these proceedings or otherwise from the partnership between the Plaintiff and the Defendant (in the latter case, provided that Rio Tinto or related entities are not a party thereto)).
The 'matter' which is the subject of the undertaking, is anything which directly or indirectly relates to each of the Rhodes Ridge Joint Venture and the Hope Downs Joint Venture.
The proceeding designated CIV 1949 of 2008 was an application by the plaintiff for pre‑action discovery to be given by the defendant, to enable it to determine whether it may have a cause of action which is maintainable against the defendant in relation to the terms of the Joint Venture Agreement it made with Rio Tinto in respect of Hope Downs. I need not pause here to further explain those proceedings, but reference may be made to my judgment in that matter: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 2] (2010) WASC 16.
Final orders were made upon that application on 15 March 2010. I ordered discovery of documents in relation to Hope Downs which would certainly include the cooperation agreement referred to above. I mention in passing that discovery was ordered to be given within 36 days. That has not happened and when I dealt with these applications, I amended par 1 of the orders made on 15 March 2010 to require discovery to be completed on or before 9 July 2010.
Discovery is to be given by a list served on the plaintiff and Rio Tinto and I ordered that a confidentiality regime be agreed between the parties and Rio Tinto insofar as the documents listed were commercially sensitive to Rio Tinto. Following entry into appropriate confidentiality undertakings, the documents are to be produced by the defendant for the inspection of persons who have agreed to be bound by that regime.
The plaintiff wishes to brief Mr Smith SC and Mr Brender as counsel to advise upon, and conduct any litigation which upon inspection of the documents, the plaintiff may be advised to pursue. But it is appreciated that counsel may not accept such a brief and discharge fully their obligations in that regard without there being a real danger that to do so may involve them in breaching the undertakings they have given in the action CIV 1279 of 2001 in relation to documents, in particular the cooperation agreement, which they have seen in the context of that action and which it is anticipated would be the subject of the discovery ordered in the proceedings CIV 1949 of 2008.
Hence the two applications made by the plaintiff. The first, in CIV 1279 of 2001, sought firstly a declaration as to the true construction of the relevant portion of cl 10 of the confidentiality undertakings and I declined to accede to that in view of the acceptance of the danger of breach of the undertaking which I have mentioned.
The substantive application in CIV 1279 of 2001, was for an order that counsel for the plaintiff be released from so much of the Rhodes Ridge undertakings as might otherwise prevent them, after inspecting the documents pursuant to confidentiality orders made in the Hope Downs proceedings, from acting upon that information. I dismissed that application for their partial release.
The related application in the proceedings CIV 1949 of 2008, firstly sought an order in terms of a minute of confidentiality which was provided to the court in terms settled between counsel for the parties and Rio Tinto. I made that order. There was in addition, an application complementary to that in CIV 1279 of 2001, for counsel, Mr Smith SC and Mr Brender, to be released from so much of the Rhodes Ridge undertakings as might prevent them from acting in the proceedings CIV 1949 of 2008 in the matter described above. This part of the application I also dismissed.
It can be seen that the dismissed applications involved revisiting the confidentiality undertakings into which counsel had entered in CIV 1279 of 2001, so that they might act for the plaintiff in CIV 1949 of 2008.
I have previously dealt with applications of this kind. I refused such an application in CIV 1279 of 2001: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 8] [2008] WASC 20, coincidentally also a decision with respect to the Hope Downs Project Cooperation Agreement.
As to the approach I should take to an application of this kind, I think it is sufficient that I repeat what I said in that judgment at [23] ‑ [25]:
The orders in question are interlocutory orders. The authorities would generally support the view that at least to the extent necessary to remedy evident injustice, the Court retains an inherent power to revisit and set aside or amend such orders. I need not, I think, expressly decide the point, but should proceed, having regard to the argument before me, upon the basis that I should consider whether it would be appropriate or necessary to remedy injustice, that I should make an order substantially in the terms described above: cf the review of authority and consideration of the question in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 by Steytler P at [23] - [28] and Pullin JA at [70] - [73].
Putting that to one side, specifically in respect of the question when a party or individual should be released from an undertaking, I think the position is the same whether one was concerned with an express undertaking to keep material confidential or the implied undertaking against the collateral use of documents, discovered or otherwise produced for inspection in the course of litigation. In Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149, Steytler J, with whom Parker J agreed, reviewed relevant authorities and discussed the applicable principles at 153 - 157 [18] - [28]. I considered relevant authorities and discussed the principles involved in the variation of the confidentiality undertaking in my earlier judgment, Wright v Hancock (No 2).
Having regard to that, it seems to me that the approach to be taken to this application, involving as it does a variation in some form effectively relaxing or lifting the full force and effect of the confidentiality undertaking, is for the court to start from the point that the nature and purpose of the undertakings is to protect commercially sensitive information which is private and which the parties to it are entitled to keep private, subject only to the requirements of the interests of justice in the particular litigation before the court. If it is sought to relax such an undertaking, the court should only accede to such an application if there are particular or, as it is sometimes put, exceptional circumstances which provide reasons to hold that the interests of the parties who have that prima facie right to keep the information confidential are overridden by the necessity to serve the interests of justice by varying or dispensing with the undertaking [23] ‑ [25].
In my opinion, the point is this, confidentiality undertakings are designed to derogate from the acknowledged confidentiality of the documents which are their subject. That is done for the purposes of particular litigation because, if it were not so, the parties to the litigation may not obtain justice from a court fully informed about all relevant considerations. But the documents remain private and the undertakings are designed to protect that privacy, except to the extent necessary for the court to do justice in the case before it.
Undertakings of the kind entered into in this matter are not made lightly. The court will vary them where it perceives that the interests of justice require variation, but having been made for good reason, they will not be departed from lightly. Some particular or exceptional reason must be able to be advanced to show that to vary or dispense with an undertaking is necessary in the interests of justice.
In my opinion, in this case, the plaintiff's desire to retain in CIV 1949 of 2008, counsel who acted for it in CIV 1279 of 2001, cannot of itself justify making an order which would, in my view, substantially set at nought the confidentiality undertakings given. There is no indication that the interests of the plaintiff could not be perfectly well served by having access to the advice of counsel who are not potentially in a position of conflict in relation to their use of the discovered information.
It was for that reason that I dismissed the applications to the extent I have indicated.
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